EXHIBIT 10.4
FRESH ENTERPRISES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS AGREEMENT, dated ________________ (the "Grant Date") is made by and
between Fresh Enterprises, Inc., a California corporation hereinafter referred
to as the "Company," and Employee Name, an Employee of the Company or a
Subsidiary of the Company, hereinafter referred to as the "Optionee" or the
"Employee."
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase _________ shares of its Common Stock, no par value at a purchase price
of _____ per share; and
WHEREAS, the Company wishes to carry out the 2001 Fresh Enterprises, Inc.
Stock Plan (the terms of which are hereby incorporated by reference and made a
part of this Agreement); and
WHEREAS, the Committee appointed to administer the Plan has determined that
it would be to the advantage and best interest of the Company and its
shareholders to grant the Non-Qualified Stock Option provided for herein to the
Optionee as an inducement to enter into or remain in the service of the Company
or its Subsidiaries and as an incentive for increased efforts during such
service, and has advised the Company thereof and instructed the undersigned
officer to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS
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Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates. All capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Plan.
Section 1.1. Acceleration Event.
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"Acceleration Event" shall mean any of the following transactions:
(a) the sale of all or substantially all of the assets of the Company; or
(b) the consummation of a merger or consolidation of the Company with
any other corporation (or other entity), other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 66-2/3% of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately after such
merger or consolidation; provided, however, that a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no person acquires more than 25% of the combined voting
power of the Company's then outstanding securities shall not constitute an
Acceleration Event; or
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(c) the stockholders of the Company approve a plan of complete
liquidation of the Company.
Section 1.2. Board
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"Board" shall mean the Board of Directors of the Company.
Section 1.3. Code
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.4. Committee
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"Committee" shall mean the Board or the Committee appointed to
administer the Plan with respect to Options granted to Employees, as
provided in Section 10.1 of the Plan.
Section 1.5. Company
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"Company" shall mean Fresh Enterprises, Inc., a California corporation.
Section 1.6. Director
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"Director" shall mean a member of the Board.
Section 1.7. DRO
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"DRO" shall mean a domestic relations order as defined by the Code or
Title I of the Optionee Retirement Income Security Act of 1974, as amended,
or the rules thereunder.
Section 1.8. Exchange Act
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Section 1.9. Option
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"Option" shall mean the Non-Qualified Stock Option to purchase Common
Stock of the Company granted under this Agreement.
Section 1.10. Plan
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"Plan" shall mean the 2001 Fresh Enterprises, Inc. Stock Plan.
Section 1.11. Rule 16b-3
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"Rule 16b-3" shall mean Rule 16b-3 under the Exchange Act, as such Rule
may be amended from time to time.
Section 1.12. Secretary
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"Secretary" shall mean the Secretary of the Company.
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Section 1.13. Securities Act
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"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.14. Series A Stock
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"Series A Stock" shall mean the Series A Convertible Preferred Stock of
the Company, par value $0.01 per share, or any other capital stock of the
Company into which such stock is reclassified or reconstituted.
Section 1.15. Shareholders' Agreement
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"Shareholders' Agreement" shall mean that certain Shareholders'
Agreement dated as of November 24, 1998 by and among the Company and the
holders of the issued and outstanding capital stock of the Company listed
on Schedule A thereto, as in effect from time to time.
Section 1.16. Subsidiary
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"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other
than the last corporation in the unbroken chain then owns stock possessing
fifty percent (50%) or more of the total combined voting power of all
classes of stock in one (1) of the other corporations in such chain.
Section 1.17. Termination of Employment
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"Termination of Employment" shall mean the time when the
employee-employer relationship between the Optionee and the Company or any
Subsidiary is terminated for any reason, with or without cause, including,
but not by way of limitation, a termination by resignation, discharge,
death,disability or retirement; but excluding (i) a termination where there
is a simultaneous reemployment or continuing employment of the Optionee by
the Company or any Subsidiary, (ii) at the discretion of the Committee, a
termination which results in a temporary severance of the employee-employer
relationship, and (iii) at the discretion of the Committee, a termination
which is followed by the simultaneous establishment of a consulting
relationship by the Company or a Subsidiary with the former Employee.
ARTICLE II.
GRANT OF OPTION
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Section 2.1. Grant of Option
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In consideration of the Optionee's agreement to render faithful and
efficient services to the Company and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the
Optionee the Option to purchase any part or all of an aggregate of ______
shares of its no par value Common Stock upon the terms and conditions set
forth in this Agreement.
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Section 2.2. Purchase Price
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The purchase price of the shares of stock covered by the Option shall
be $9.25 per share without commission or other charge, which price the Committee
has determined to be not less than the Fair Market Value thereof on the date
hereof.
Section 2.3. Consideration to Company
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In consideration of the granting of this Option by the Company, the
Optionee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe. Nothing in this Agreement or in the Plan shall confer upon
the Optionee any right to continue in the employ of the Company or any
Subsidiary or shall interfere with or restrict in any way the absolute rights of
the Company and its Subsidiaries, which are hereby expressly reserved, to
discharge the Optionee at any time for any reason whatsoever, with or without
cause, except to the extent expressly provided otherwise in a written agreement
between the Company and the Optionee.
Section 2.4. Adjustments in Option
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The Committee may make adjustments with respect to the Option in
accordance with the provisions of Section 11.3 of the Plan.
ARTICLE III.
PERIOD OF EXERCISABILITY
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Section 3.1. Commencement of Exercisability
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(a) Subject to subsections (b), (c) and (d) below, and Section 3.3, the
Option shall become exercisable in five cumulative installments as follows:
(i) The first installment shall consist of ten percent (10%) of
the shares covered by the Option and shall be immediately exercisable
on the Grant Date.
(ii) The second installment shall consist of ten percent (10%) of
the shares covered by the Option and shall become exercisable on the
first anniversary of the Grant Date.
(iii) The third installment shall consist of twenty percent (20%)
of the shares covered by the Option and shall become exercisable on the
second anniversary of the Grant Date.
(iv) The fourth installment shall consist of twenty percent (20%)
of the shares covered by the Option and shall become exercisable on the
third anniversary of the Grant Date.
(v) The fifth installment shall consist of forty percent (40%) of
the shares covered by the Option and shall become exercisable on the
fourth anniversary of the Grant Date.
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(b) No portion of the Option which is unexercisable at Termination of
Employment shall thereafter become exercisable.
(c) Notwithstanding subsection (a), upon the occurrence of the first
Acceleration Event as of which the Optionee remains continuously employed
by the Company from the Grant Date, the Option shall become exercisable in
full provided it has not otherwise expired as of such date.
Section 3.2. Duration of Exercisability
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The installments provided for in Section 3.1 are cumulative. Each such
installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3.
Section 3.3. Expiration of Option
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The Option shall terminate and may not be exercised after the earliest
of:
(a) Ten (10) years after the date of grant; or
(b) Six (6) months after the date the Optionee's employment is
terminated if such termination is due to the Optionee's death or
disability; or
(c) Thirty (30) days after the date the Optionee's employment is
terminated for a reason other than death or disability; or
(d) Concurrently with the termination of the Optionee's employment for
cause.
ARTICLE IV.
EXERCISE OF OPTION
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Section 4.1. Person Eligible to Exercise
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During the lifetime of the Optionee, only the Optionee may exercise
the Option or any portion thereof. After the death of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option
becomes unexercisable, be exercised by the Optionee's personal
representative or by any person empowered to do so under the deceased
Optionee's will or under the then applicable laws of descent and
distribution.
Section 4.2. Partial Exercise
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Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable; provided,
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however, that each partial exercise shall be for not less than one hundred (100)
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shares and shall be for whole shares only.
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Section 4.3. Manner of Exercise
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The Option, or any exercisable portion thereof, may be exercised solely
by delivery to the Secretary or his or her office of all of the following prior
to the time when the Option or such portion becomes unexercisable:
(a) A written notice complying with the applicable rules established by the
Committee stating that the Option, or a portion thereof, is exercised. The
notice shall be signed by the Optionee or other person then entitled to exercise
the Option or such portion; and
(b) (i) Full cash payment to the Secretary of the Company for the shares
with respect to which such Option or portion is exercised; or
(ii) With the consent of the Committee, through the delivery of
property of any kind which constitutes good and valuable consideration or other
manner of payment provided in Section 6.2(e) of the Plan; or
(iii) With the consent of the Committee, any combination of the
consideration provided in the foregoing subparagraphs (i) and (ii); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion, stating that the shares of stock
are being acquired for his own account, for investment and without any present
intention of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Committee may, in its
reasonable discretion, take whatever additional actions it deems appropriate to
insure the observance and performance of such representation and agreement and
to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Committee may require an opinion of counsel acceptable to it to
the effect that any subsequent transfer of shares acquired on Option exercise
does not violate the Securities Act, and may issue stop-transfer orders covering
such shares. Share certificates evidencing stock issued on exercise of this
Option shall bear an appropriate legend referring to the provisions of the
Shareholders' Agreement and this subsection (c) and the agreements herein. The
written representation and agreement referred to in the first sentence of this
subsection (c) shall, however, not be required if the shares to be issued
pursuant to such exercise have been registered under the Securities Act, and
such registration is then effective in respect of such shares; and
(d) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; provided, that prior to the date of Termination of
Employment, with the consent of the Committee, shares of the Company's Common
Stock owned by the Optionee, duly endorsed for transfer, with a Fair Market
Value on the date of delivery equal to the sums required to be withheld, may be
used to make all or part of such payment; and
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(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option; and
(f) To the extent required by the Administrator, a Consent of Spouse from
the spouse of the Optionee.
Section 4.4. Conditions to Issuance of Stock Certificates
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The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on which
such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Committee shall, in its sole discretion, deem necessary or advisable;
and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Committee shall, in its sole discretion,
determine to be necessary or advisable; and
(d) The receipt by the Company of full payment for such shares, including
payment of all amounts which, under federal, state or local tax law, the Company
(or other employer corporation) is required to withhold upon exercise of the
Option; and
(e) The receipt by the Company of a joinder agreement to the Shareholders'
Agreement in form and substance satisfactory to the Administrator executed by
the Optionee and providing that the Optionee agrees to be bound by the
provisions of the Shareholders' Agreement as though an original party thereto.
Section 4.5. Rights as Shareholder
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The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until the Holder shall
have paid to the Company the Option exercise price and applicable withholding
tax.
Section 4.6. Notice of Transfer
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As a condition to exercising the Option, the Optionee agrees to give the
Company prompt notice of any disposition of the shares of Common Stock acquired
upon exercise of the Option within (i) two years after the Grant Date or, if
applicable, two years after the date the Option is
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modified, extended or renewed for purposes of Section 424(a) of the Code, and
(ii) one year after the issuance of such shares to the Optionee.
Section 4.7. Lock-Up Period
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As a condition to exercising the Option, the Optionee agrees that for a
period of up to one hundred eighty (180) days prior to the effective date of a
registration statement covering shares of Common Stock and a period of up to one
hundred eighty (180) days (or such other period as is reasonably agreed to by
the Company and the managing underwriter(s)) following the effective date of a
registration statement covering shares of Common Stock, the Optionee will not
sell, assign, transfer or pledge any shares of Common Stock owned by the
Optionee if such a prohibition on transfer is requested of the Optionee by the
managing underwriter(s) for the Company in connection with the public offering
of shares of Common Stock.
Section 4.8. Forfeiture Provisions
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As a condition to exercising the Option, the Optionee understands and
agrees that: (a)(i) any proceeds, gains or other economic benefit actually or
constructively received by the Optionee upon any receipt or exercise of this
Option, or upon the receipt or resale of any Common Stock issued upon exercise
of this Option, must be paid to the Company, and (ii) this Option shall
terminate and any unexercised portion of the Option (whether or not vested)
shall be forfeited, if: (b)(i) the Optionee at any time during the term of
Optionee's employment by the Company or during the one year period following the
Optionee's Termination of Employment, engages in any activity which is in
competition with the Company or inimical, contrary or harmful to the interests
of the Company (as determined in the reasonable discretion of the
Administrator), (ii) the Optionee's employment is terminated for cause, or (iii)
the Optionee at any time breaches the provisions of the Optionee's
Non-Disclosure Agreement with the Company.
ARTICLE V.
OTHER PROVISIONS
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Section 5.1. Administration
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The Committee shall have the power to interpret the Plan and this Agreement
and to adopt such rules for the administration, interpretation and application
of the Plan as are consistent therewith and to interpret, amend or revoke any
such rules. All actions taken and all interpretations and determinations made by
the Committee in good faith shall be final and binding upon the Optionee, the
Company and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Option. In its sole discretion, the Board
may at any time and from time to time exercise any and all rights and duties of
the Committee under the Plan and this Agreement except with respect to matters
which under Rule 16b-3 or Section 162(m) of the Code, or any regulations or
rules issued thereunder, are required to be determined in the sole discretion of
the Committee.
Section 5.2. Option Not Transferable
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Neither the Option nor any interest or right therein or part thereof shall
be sold, pledged, assigned, or transferred in any manner other than by will or
the laws of descent and distribution,
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or, subject to the consent of the Committee, pursuant to a DRO, unless and until
such Option has been exercised, or the shares underlying such Option have been
issued, and all restrictions applicable to such shares have lapsed. Neither the
Option nor any interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Optionee or his successors in interest or
shall be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect, except to
the extent that such disposition is permitted by the preceding sentence.
Section 5.3. Shares to Be Reserved
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The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement.
Section 5.4. Shares Subject to Plan and Shareholders' Agreement
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The Optionee acknowledges that all shares acquired upon exercise of the
Option are subject to the terms of the Plan and the Shareholders' Agreement.
Section 5.5. Notices
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Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Optionee shall be addressed to the Optionee at the address given
beneath the Optionee's signature hereto. By a notice given pursuant to this
Section 5.5, either party may hereafter designate a different address for
notices. Any notice which is required to be given to the Optionee shall, if the
Optionee is then deceased, be given to the Optionee's personal representative if
such representative has previously informed the Company of his or her status and
address by written notice under this Section 5.5. Any notice shall be deemed
duly given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, and deposited (with postage prepaid) in a post office or branch post
office regularly maintained by the United States Postal Service or personally
delivered; provided, however, that any notice to be given by the Optionee
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relating to the exercise of the Option or any portion thereof shall be deemed
duly given upon receipt by the Secretary or his or her office.
Section 5.6. Titles
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Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
Section 5.7. Construction
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This Agreement shall be administered, interpreted and enforced under the
internal laws of the state of California without regard to conflicts of laws
thereof.
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Section 5.8. Conformity to Securities Laws
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The Optionee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including, without limitation, the applicable exemptive
conditions of Rule 16b-3. Notwithstanding anything herein to the contrary, the
Plan shall be administered, and the Option is granted and may be exercised, only
in such a manner as to conform to such laws, rules and regulations. To the
extent permitted by applicable law, the Plan and this Agreement shall be deemed
amended to the extent necessary to conform to such laws, rules and regulations.
Section 5.9. Amendments
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This Agreement and the Plan may be amended without the consent of the
Optionee, provided that no amendment of this Agreement shall, without the
consent of the Optionee, impair any rights of the Optionee under this Agreement.
Section 5.10. Section 162(m)
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The parties hereby acknowledge and agree that without the consent of
the Holder no modifications or restrictions to the provisions in this Agreement
may be made on account of Section 162(m) of the Code which would adversely
affect any rights of the Holder hereunder.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
FRESH ENTERPRISES, INC.
By: ________________________________________
Gregory G. Dollarhyde
President and Chief Executive Officer
OPTIONEE:
________________________
________________________
________________________
Address
Optionee's Taxpayer
Identification Number: __________________________
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